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[ama_mmmc]

Just saw that this was announced.

http://story.news.yahoo.com/news?tmpl=story&cid=582&ncid=582&e=1&u=/nm/20030424/wr_nm/tech_verizon_dc

Not trying to go down this path again, as everyone has their own opinions, but I think this is not going to solve the problem, plus the fines are something like $150,000.00 per infraction....rediculous.

There will always be someone out there that has enough smarts to circumvent the system.  If the music industry could get on board with some system, it would be best for all involved.

[px2so]

Man, this sucks. This is clear violation of privacy. What the hell is matter with RIAA? Is this how they treat their own customers? (yes, people who downloads music still buys them). This sueing against their own customers can seriosuly kill them off more quicker. I'm glad companies like Verizon at least tried to fight for privacy. Watch and see RIAA site get hacked again.

[KingSparta]

tonight there is 4.4+ million users on a P2P site (to be nameless), that is up about 600,000 from 3 months ago.

Maybe Some Of It is From The Dixie Chicks.

[phelt]

We have sunk pretty low when laws allow corporations and lobbying groups to (effectively) issue their own subpoenas.

You know, the real problem with internet music trading is that people find out that there's a ton of good music out there... that doesn't come from RIAA companies.

OT: KingSparta, you have one of the most twisted avatar/signature combos that I've seen in a while

[Charlemagne 8]

There's a little better news. I like the line of essentially saying "Now you're going to force us to start suing individuals." I thought they already were.

April 26, 2003
Entertainment Industry Loses in Web Case
By MATT RICHTEL


AN FRANCISCO, April 25 — In a huge setback to the big record and movie companies, a federal judge in Los Angeles ruled in favor of two online services that allow people to share music, movies and other digital files freely over the Internet.

The decision puts the brakes on the momentum the entertainment industry had previously enjoyed in its legal efforts to block file-swapping services, which have made it easy for consumers to acquire copyrighted material free.

Unless the decision is reversed on appeal, entertainment industry analysts said, it heralds a new era that is likely to force Hollywood and the record business to accelerate the development of their own fee-based online distribution services. At the same time, the industry is expected to step up its efforts to go directly after individuals who it believes are violating copyright laws by distributing music, movies and other digital material without paying for them.

Judge Stephen Wilson of United States District Court ruled that Grokster and StreamCast Networks, which offers the Morpheus peer-to-peer software, are not guilty of copyright infringement. The judge said those services — unlike Napster, an earlier music-swapping software company — were essentially no different from the companies that created the videocassette recorder, which also allowed consumers to make their own copies.

"This is a watershed day," said Wayne Rosso, the president of Grokster, who said his 20-month-old service is used by 10 million people each month. "What it does is rewrite the rules."

Mr. Rosso, as well as StreamCast executives, argued that their technology was used for many legal uses, like sharing personal files, and noncopyrighted works, and that they should not be blamed when users illegally exchange copyrighted files.

The ruling does not directly affect KaZaA, a software distributed from outside the United States by Sharman Networks, which has also been a target of the entertainment industry.

In the media companies' battle to stop such services, this is the first ruling by a federal court that found online-sharing software does not abet copyright infringement. Two years ago, a different federal judge found, in a case upheld on appeal, that Napster, previously used by tens of millions of people to share files, was guilty of wholesale copyright infringement. The ruling essentially drove Napster out of business.

But Judge Wilson ruled that Grokster and StreamCast are fundamentally different from Napster in terms of their underlying technology. The result, the judge ruled, is that the two newer services have less ability to control what files their users download, and to prevent those users from gaining access to copyrighted material. Therefore, he said, they cannot be held accountable for their users' actions.

The services, which distribute the software free, make money by selling advertising that appears when files are opened.

"The ruling basically has recognized that technology can't be held back by archaic laws, and that's what the industry has been trying to do," Mr. Rosso said.

But the music and movie companies, pledging to appeal the decision, said the two services were overwhelmingly used by people to exchange copyrighted material. And they said the decision would force them to become more aggressive in suing individual users.

Already, the music industry has filed lawsuits against four college students it accuses of operating Web sites used by fellow students to search a computer network for copyrighted files.

In a separate matter, a judge on Thursday ordered that a large Internet service provider, Verizon, must turn over to music companies the names of two customers suspected of having offered copyrighted music for download. The music companies are seeking the names as part of the new legal strategy of suing individual traders of free songs.

Andrew Lack, chief of Sony Music, said the music companies would pursue the biggest online traders in hopes of deterring other users.

"I don't think you have to go after 10 million or 5 million or 10,000 people," Mr. Lack said today. "You choose the users that make the case credible."

In recent years, the entertainment industry has characterized defeating Napster and other such music sharing services as essential to its own success. But Mr. Lack contended that the judge's decision actually represented a victory because it supported the industry's position that individual users who freely trade copyrighted works are guilty of violating the law.

"I'm relieved on some level because the judge affirmed everything we've been saying, but for one point, which may distract people from the real meaning of the decision," Mr. Lack said, referring to today's setback for the record industry.

But Philip Leigh, a digital media analyst with Raymond James & Associates, an investment banking firm in St. Petersburg, Fla., said that the decision was a clear signal that the industry must fundamentally change, and provide inexpensive, easy-to-access music in a way that consumers have grown accustomed to on services like Napster and Morpheus.

"The music business will transform," he said. "Prices of online music will get cheaper, and consumer user rules will be liberalized."

Judge Wilson's decision focused to a large extent on the technological differences between the services and Napster.

In the case of Napster, users exchanged files that they stored on their home computers. But when Napster users wanted to find out what songs were available on other computers, they sent a search request through Napster's central computers. Those computers, in turn, searched the network to see if a media file was available.

But the networks operated by Grokster and StreamCast Networks are considered decentralized. The difference being that users searching for a song or movie file do not go through the companies' computer servers. Rather, the companies' software searches the entire network of computers for those with the most powerful systems. When the software finds a powerful computer, it turns it temporarily into a search hub, or supernode. That node then searches the network for a user's request.

As a result, Judge Wilson wrote, there was no admissible evidence "that the defendants have the ability to supervise and control the infringing conduct."

The judge said it was clear that many users employ the service to exchange copyrighted files. And he said it was also clear that the two services are profiting from their software by selling advertising. But he said that the technology was less like Napster and more analogous for legal purposes to VCR's.

In a landmark decision in 1984, the Supreme Court ruled in favor of Sony, which had been sued by the television industry on the ground that the VCR could be easily used to record copyrighted programs.

Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be used to infringe copyrights, Judge Wilson wrote in his 34-page opinion.

But David Kendall, a lawyer for the Motion Picture Association of America, which represented Hollywood's interests in the case, said he believed that an appeals court would overturn the decision, finding that Grokster and StreamCast really are the same as Napster.

"It's a distinction without a legal difference," Mr. Kendall said. "We don't believe it's legally significant."

[KingSparta]

>> There's a little better news.
If The Software Is A True P2P How Could They Stop It Anyway?

[sraymond]

I've been following this case with interest since it was first reported.

What's interesting (to me, at least) is that Verizon is basically arguing a First Amendment angle instead of a Fourth Amendment angle.  For those that haven't read the Constitution in a while, the First is free speech and the Fourth is protection against unreasonable search and seizure.  My (admittedly uneducated as a lawyer) opinion is that the scary part of this case is it's likeness to a private warrantless search.

The RIAA has the resources to scare most people into a settlement.  Think about what DirectTV (or was it Dish?) did with their "Dear Customer" letters - basically they sent a bunch of letters to customers of known satellite piracy product vendors, offering to drop efforts of prosecution in exchange for a small fee (on the order of thousands of dollars).  Of course, a large percentage of these customers were thieves - but a very real percentage were not.  And what are the innocents to do?  Do they have the money to fight DirectTV lawyers?  Is it easier to settle out of court?

Now imagine that the RIAA decides you're a pirateer - maybe because they've seen a file you're sharing that appears to be a Madonna song.  They get this subpoena (which seems a lot like a private warrantless search order) to get your name and then send you a letter offering to settle for $1000 or prosecute.  Do you have the means to fight the RIAA?

The MPAA once accused some user of sharing a Harry Potter movie...  they got a subpoena and demanded the ISP terminate the user's account.  Turns out it was a grade school book report.  Oops.

OK...  end of rant.

Scott-

[phelt]

sraymond - I find your semi-unpostulated 4th Amendment argument intriguing. Let's hope that Circuit Court judges are similarly interested.

BTW, the word "pirate" and thus the verb "pirating" 9occured as a result of theft for profit. If there's no intention of or effort toward profit, is is still pirating?

[Harry_The_Hipster]

My (admittedly uneducated as a lawyer) opinion is that the scary part of this case is it's likeness to a private warrantless search.  

Haven't really thought it through, but believe that Fourth Amendment would require state action - that is, the offending party has to be operatng under a cloak of governmental authority, and not just under a court order.

The analogy is interesting however because the proceeding is somewhat like a private criminal prosecution (still authorized in a few states), since the DCMA carries criminal sanctions as well as civil penalties. And of course one of the critical objections to the DCMA is that it improperly delegates to a private party authority which would require a prior judicial determination if exercised by a governmental agency.

HTH

[KingSparta]

HTH are you a lawyer?

Because I did not understand a word you said.

=====================================

also I am sure this court ruleing has nothing to do what goes on outside the USA

[Harry_The_Hipster]

King:

Sorry for the jargon. Habits of a lifetime.

Basic translation: The Fourth Amendment is aimed at activity by government agencies, not private parties. If you break into my house looking for evidence that I breached a contract with you, that's a crime but its not a violation of the 4th Amednment. That's because you're a private party, not the government.

The interesting twist is this. When you look at the DCMA - which is the law that authorizes these subpoenas - you see that it is a criminal statute as well as a non-criminal statute: there are criminal sanctions attached to a violation. At the same time, it looks like the statute is delegating (or assigning) a governmental function - investigating the crime - to a private party (the RIAA).

Well, the suggestion is as follows.

The government would have to go before a judge to obtain a search warrant or subpoena in a criminal investigation. The cops can't just break into your house on an unsupported suspicion. That's the 4th Amendnment issue.

So why should the government be allowed to avoid that requirement by downloading the responsibility to the RIAA for conducting the investigation without judicial oversight when it may wind up in the same place - a criminal prosecution by the government?

Don't think it works, though. One other difference I didn't mention in the last post: the 4th Amendment protects a defendant against invasion of his property from illegal search. Here, the subpoena is directed to a third party (Verizon), so even if you accept the analogy, Verizon's not a potential defendant and wouldn't be able to claim 4th Amendment protection for a search aimed at one of its customers.

I suppose it could notify the end-user and let him raise the objection.However, as far as the customer is concerned, don't know if he has the same legitimate exp[ectation of privacy for his account with an ISP as he does for his home or his car.

On ex-US activity: maybe yes/maybe no.

Dutch courts for instance have refused to shut down p2ps, so the legal issue - violation of intellectual property rights - is handled much differently in other countries.

But that's not the end of the issue. US courts have begun claiming authority over exclusively off-shore activities. Historically courts have required some evidence of a defendant's physical presence or business contact with the state in order to exert legal authority over it. However, there was a recent decision by a US court that it had jurisdiction over the Australian company that runs Morpheus or one of the other p2ps even though that company had no such presence or activities in the US.

The basis for allowing the US court to proceed with the case seems to be that users in the US were utilizing the program, and that was sufficient to allow the court to deal with the defendant.

So, even if the non-US defendant doesn't show up in court, the court may enter a judgment against it. Under international treaties and international law principles, the courts in the home jurisdiction (Australia) may then enforce the US judgment without reviewing the legal basis for the original claim.

But that's not a slam-dunk, for reasons that are quite complex. This whole issue of jurisdiction over foreign parties in cyberspace is quite unresolved ATM.

Hope that was more helpful and not too tedious. (I know, I'm setting myself up.)

HTH

[whoeveryouare]

So why should the government be allowed to avoid [the requirement to obtain a legitimate search warrant] by downloading the responsibility to the RIAA for conducting the investigation without judicial oversight when it may wind up in the same place - a criminal prosecution by the government?

Don't think it works, though. One other difference I didn't mention in the last post: the 4th Amendment protects a defendant against invasion of his property from illegal search. Here, the subpoena is directed to a third party (Verizon), so even if you accept the analogy, Verizon's not a potential defendant and wouldn't be able to claim 4th Amendment protection for a search aimed at one of its customers.

I don't buy this for a minute.  The Constitution is supposed to protect all American citizens, not just those the government or its agents is directly after.  If the police were investigating you in some criminal investigation, that doesn't mean they could just smash my front door down and take my computer, simply saying "Oh, we're not after YOU, so it's cool."  And the RIAA couldn't either.  (Though I wish they would try, as I have a nice surprise for them.)

This is not to say that the RIAA won't get away with this.  I'm sure that the Constitution will be raped once again.  It has been slowly deteriorating for years and years, and the Bush administration is certainly no particular friend to it.

[fex]

The whole thing is not really hard to understand.

If I crate something that I want to sell and somebody steals it, then I'm not happy.

So what is wrong in catching the thief?

[whoeveryouare]

It's a bit more complicated than that.  There are two needs that need to be balanced: The need for law and justice, and the need for the protection of civil rights.  You are ignoring the latter.

If that item you crated is stolen, you don't have the automatic right to bust doors down in search of it, nor do you have the right to intercept private communications at random in hopes of finding it.

[fex]

They stole it. And They will not be shootet. Or is this wrong?

And how do you would catch them in an other way? Any suggestion?

[whoeveryouare]

For any civil or criminal investigation, the steps undertaken should always be legitimate and legal.  Yes, of course the existence of civil rights is an impediment to finding thieves and other criminals.  That's life.

There are already too many people worrying about how to go after suspected offenders.  I think there needs to be more people on the other side of the equation.

[fex]

Everybody downloading tracks P2P knows exactly, that this is not right. So "sorry, didn't knew it" is no explanation today. I don't suppose, you are thinking different in this point.

So why are telling me that it is not right to catch them?

This is also life.

And dont' tell me, that this has something to do with "free speech". This is a lawyers joke.

[KingSparta]

I think If your downloading Dixie Chicks Songs It Is Legal.

Not Sure However

[whoeveryouare]

I am not saying that "it's not right to catch them".  I am saying that you can't do whatever you want in order to catch them, law and civil rights be damned.  And I think that forcefully obtaining the records of a third party--without a court-ordered warrant--is illegal and unjust.

In other words, I would have no problem with what the RIAA is doing IF they went about it in the appropriate fashion: By bringing charges against "John Doe" defendants, and letting the courts subpoena the same third-party information.  That would be the RIGHT and LEGAL way to do it, but it's harder, costlier, and slower, so they don't want to do that.

The RIAA is party to the breaking of a higher law in order to go after those who they accuse of breaking a lesser law.

[fex]

I think If your downloading Dixie Chicks Songs It Is Legal.

Not Sure However

In Europe you get paid if you download their songs.

[fex]

...In other words, I would have no problem with what the RIAA is doing IF they went about it in the appropriate fashion: By bringing charges against "John Doe" defendants, and letting the courts subpoena the same third-party information.  That would be the RIGHT and LEGAL way to do it, but it's harder, costlier, and slower, so they don't want to do that...

But the result would be the same. And why force them to go the harder, costlier and slower way, if they have the right on their side?

[Harry_The_Hipster]

But the result would be the same. And why force them to go the harder, costlier and slower way, if they have the right on their side?

Because it will be far from clear when they apply for the subpoena that they have the right on their side. And also because there are  a lot of other interests involved, beyond simply protecting copyright.

US citizens have expectations of privacy that may not be so strong elsewhere. A lot of it comes from our history, and the way that is embedded in our law. We have a strong tradition/history of requiring courts to intermediate these disputes, instead of just allowing anyone who thinks he's getting the short end of the stick to use self-help.

What if it turns out that the Verizon user in fact wasn't the culprit?  Or the RIAA just had the wrong person? Who's going to undo that?

A judge or magistrate  who has the duty to be impartial should be deciding these issues. In theory, she or he will be able to catch any attempts by the RIAA to over-reach, and will test their evidence at least a little before the subpoena is issued. Right now, that is done by clerical people who aren't trained to do it.

HTH

[fex]

Because it will be far from clear when they apply for the subpoena that they have the right on their side.

So they didn't violate copyright? Then they would have no problems at all, I suppose.

And also because there are  a lot of other interests involved, beyond simply protecting copyright.

And what's wrong on having such interests? Did the other side pay for what they got?

US citizens have expectations of privacy that may not be so strong elsewhere.

But violate other rights (copyrights) is okay?

A judge or magistrate  who has the duty to be impartial should be deciding these issues. In theory, she or he will be able to catch any attempts by the RIAA to over-reach, and will test their evidence at least a little before the subpoena is issued. Right now, that is done by clerical people who aren't trained to do it.

But this is not a reason to say RIAA is just evil. So maybe you should change the system.

[KingSparta]

But this is not a reason to say RIAA is just evil.

maybe not, but i do remember they were cought price fixing along with the major labels riping off the public.

Is that legal?

What makes it ok for one to brake the law and not for another?

Eye Of An Eye...

[whoeveryouare]

Fex,

You seem to be mentally blocking the civil rights argument before you.  Look at it this way:

Suppose a criminal escaped from prison, and the police thought he was hiding out in someone's house.  Now, if they could magically just "know" which house he was in, I'm sure you would say "Go ahead and smash the door in, and get him".

But think about what would really happen, if they didn't know which house he was in: Without civil rights, the police would smash everyone's door in, looking for this guy.  Does that seem right to you, even though it would work?

Civil rights laws, which originate from nature and NOT from government, exist to protect everyone - not specifically criminals.

[sraymond]

The DCMA provides that “A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.”

Such a subpoena serves as a sort of private search warrant that allows virtually anyone to effect a subpoena without judicial supervision or any lawsuit having been filed.  Abuse or misuse of such a subpoena is certain.  One such example of misuse concerns MediaForce, an Internet anti-piracy firm that functions as a sort of bounty hunter to copyright holders.  Their services allow music publishers, record labels, recording companies, motion picture studios, and members of the software industry to have P2P networks searched for pirated material by using bots (software tools used for digging through data) to look for infringing material.  The service also generates form letters to be sent to ISPs of suspected offenders.  Alas, their system isn’t perfect.  In their Motion to Expedite, Verizon raised the issue of a case where MediaForce sent notice to an ISP alleging that a user had posted the film Harry Potter and the Sorcerer’s Stone for download.  The letter further demanded that the ISP terminate the users account.  After preliminary investigation by the ISP, the “infringing material” turned out to be a file titled “Harry_Potter_Book_Report.rtf” – it contained a child’s book report on Harry Potter!

Now, imagine that instead of demanding termination of the user's account, the MPAA send the "offender" a form letter demanding payment of $1000 or face a lawsuit where fines could be on the order of $100,000.  And imagine that this child's family isn't well-off or particularyly well-educated or overly courageous to fight the big-bad-MPAA.  Might it be possible that they'd pay the $1000 to avoid the risk of losing $100,000 and the certaintly of paying a lawyer?

Again, I'm not a lawyer...  but I do know this:  The DCMA was passed because of strong lobbying by the music and movie industry.

HTH:  Thanks for the information about the criminal liability under the DMCA...  Do you know if anyone has been prosecuted?  I'd hope the evidence used by the prosecution would have to be more than that provided by the wronged copyright holder (i.e. the results of the subpoena combined with whatever proof they had of copyright violation)!

Scott-

[Azure]

What's rather sad is the reality of the statistics behind the RIAA's claims and the absurd fines they're allowed to incur.  How can you justify a fine for one song that amounts to roughly 10,000 CDs (@ $15/CD)?  By assuming that the file you shared was spread to 10,000 people who would have paid money for that CD?  That's a big assumption.  

The four college students mentioned in the article were not actually distributing MP3s at all, but actually just made an indexing service for their college's network, making ALL files easier to find.  They were all sued for each song on the entire network, rather than the people who actualy had/shared the files.

On a curious side note, more and more artists are providing free MP3s from their albums on their corporate websites.   I wonder if a person would be sued for having those specific songs, too.

[whoeveryouare]

On a curious side note, more and more artists are providing free MP3s from their albums on their corporate websites.   I wonder if a person would be sued for having those specific songs, too.

The fact that we have to wonder, and the fact that no one here can give a definitive, certain answer, gives testament to the fact that the RIAA is seriously out of hand.  This insanity has to end.  I hate thieves too, but I hate people who rape The Law even more.